California employment, wrongful termination and discrimination blog.

FMLA/ADA Protection and Lay Offs / Termination

8/24/2014

Click to set custom HTML

An employee who exercises his FMLA/CFRA or ADA/FEHA rights due to a qualifying disability or serious medical condition is considered to be in a "protected" class. This means that it is illegal for an employer to treat that employee differently because of his exercise the above workplace disability rights.

Being "protected" does not mean, however, that an employee is protected from any employment action and enjoys some kind of immunity because of his FMLA or ADA status. For instance, when a lay-off takes place, and employee who is on FMLA or ADA leave is subject to lay-off just like any other employee. It would only be illegal to choose an employee for lay-off because of his FMLA /ADA status.

The same applies to employment terminations. A disabled employee who engages in some kind of misconduct or violates an employer's policy can be lawfully terminated just like any other employee who never applied for FMLA leave or ADA/FEHA leave or other accommodations. Being in a "protected" class is not a shield against all harm. It's only a legal remedy against being treated differently because you are a member of that class.

1 Comment

An Example of an Insufficient Medical Note

7/16/2013

0 Comments

Below is an example of an actual medical note which is likely insufficient in order to put the employer on proper notice of you need for medical leave under FMLA, CFRA, ADA or FEHA. There are two main issues with this medical note:

First, even though it states that the employee has "several medical condition", it doesn't identify any such conditions. It would be helpful to the employer if the doctor who wrote this note was a little more specific about the nature of his patient's condition and the resulting limitations.

The second issue that it doesn't firmly excuse the employee from work for certain dates. "... prevent her from appearing" is not the same as "unable to report to work between (date) and (date).

You should not hesitate to review or have an attorney review the medical note you receive from your doctor, which you plan to transmit to your employer in order to have your medical leave approved, in order to make sure that it is sufficiently specific and complete.

0 Comments

Reinstatement Under CFRA/FMLA Medical Leave

12/13/2012

Leave under FMLA or CFRA shall not be deemed to have granted unless the employer provides the employee ... a guarantee of employment in the same or a comparable position upon the termination of leave. Gov. Code 12945.2(a). It is an unlawful employment practice for an employer, after grating a requested CFRA medical leave, to refuse to honor its guarantee of reinstatement to the same or comparable position at the end of leave, unless the refusal is justified by a number of limited circumstances, the most common of which is lay-offs, which everyone is equally subject to.

When an employer defends against a wrongful termination claim based on FMLA intereference claim, the employer must demonstrate a legitimate reasons to deny reinstatement to the qualified employee, whose leave is about to expire, and who expects to return to work.

One significant power of FMLA and CFRA laws favoring employees is that intent or motive is irrelevant in bringing claims for FMLA or CFRA violation. As long as the law has been violated, even if it an innocent mistake on the part of the employer, the employer will still be liable for CFRA/FMLA violation. The remedies may include payment of damages, reinstatement to work or both. For more information about your rights under FMLA and CFRA, as well as your disability rights at workplace, please visit our other California Employment Lawyer Blog.

Pregnancy and PDLL, FMLA and CFRA interception

2/20/2009

Under federal law, leave taken for an employee's incapacity due to pregnancy, childbirth or related medical condition is governed by FMLA, just like leave for any other "serious health condition" of an employee. However, the CFRA (California Family Rights Act) expressly excludes an employee's incapacity due to pregnancy, childbirth, or related medical condition.

Pregnancy disability leaves under the PDLL run concurrently with leave taken under the FMLA.
Thus, if an employee takes 12 weeks of leave due to her pregnancy, childbirth or related medical condition and the employer gives the proper FMLA notices, the employee will have exhausted her annual entitlement to FMLA leave and will have exhausted 12 weeks of the fourt month PDLL leave entitlement.

Since CFRA doesn't run concurrently with PDLL, CFRA can be taken after PDLL leave. Following a pregnancy disability leave, an employee will still have the right to take a CFRA leave of up to 12 weeks "for reason of the birth of her child, if the child has been born by this date" assuming, of course, that the CFRA leave rights were not exhausted during that year prior to the pregnancy disability leave.

If the maximum amount of both types of leave is taken, the maximum total leave entitlement will be 4 months plus 12 workweeks (4 months of pregnancy disability leave under the PDLL, of which 12 weeks may also be FMLA leave plus 12 workweeks of CFRA leave).

An employee is only entitled to use the maximum amount of pregnancy disability leave if she was actually disabled by pregnancy for four months, and is entitled to CFRA leave only if she meets CFRA eligibiltiy rules and has not previously used the CFRA leave for another purpose.

FMLA/ADA Protection and Lay Offs / Termination

An Example of an Insufficient Medical Note

Reinstatement Under CFRA/FMLA Medical Leave

Pregnancy and PDLL, FMLA and CFRA interception

Categories

Personal Injury Law

Employment Law

Law Office of Arkady Itkin